The History of England from the Accession of James II, Vol. 4

T >> Thomas Babington Macaulay >> The History of England from the Accession of James II, Vol. 4

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Whoever attentively and impartially studies the report of the
debates will be of opinion that, on many points which were
discussed at great length and with great animation, the Whigs had
a decided superiority in argument, but that on the main question
the Tories were in the right.

It was true that the crime of high treason was brought home to
Fenwick by proofs which could leave no doubt on the mind of any
man of common sense, and would have been brought home to him
according to the strict rules of law, if he had not, by
committing another crime, eluded the justice of the ordinary
tribunals. It was true that he had, in the very act of professing
repentance and imploring mercy, added a new offence to his former
offences, that, while pretending to make a perfectly ingenuous
confession, he had, with cunning malice, concealed every thing
which it was for the interest of the government that he should
divulge, and proclaimed every thing which it was for the interest
of the government to bury in silence. It was a great evil that he
should be beyond the reach of punishment; it was plain that he
could be reached only by a bill of pains and penalties; and it
could not be denied, either that many such bills had passed, or
that no such bill had ever passed in a clearer case of guilt or
after a fairer hearing.

All these propositions the Whigs seem to have fully established.
They had also a decided advantage in the dispute about the rule
which requires two witnesses in cases of high treason. The truth
is that the rule is absurd. It is impossible to understand why
the evidence which would be sufficient to prove that a man has
fired at one of his fellow subjects should not be sufficient to
prove that he has fired at his Sovereign. It can by no means be
laid down as a general maxim that the assertion of two witnesses
is more convincing to the mind than the assertion of one witness.
The story told by one witness may be in itself probable. The
story told by two witnesses may be extravagant. The story told by
one witness may be uncontradicted. The story told by two
witnesses may be contradicted by four witnesses. The story told
by one witness may be corroborated by a crowd of circumstances.
The story told by two witnesses may have no such corroboration.
The one witness may be Tillotson or Ken. The two witnesses may be
Oates and Bedloe.

The chiefs of the Tory party, however, vehemently maintained that
the law which required two witnesses was of universal and eternal
obligation, part of the law of nature, part of the law of God.
Seymour quoted the book of Numbers and the book of Deuteronomy to
prove that no man ought to be condemned to death by the mouth of
a single witness. "Caiaphas and his Sanhedrim," said Harley,
"were ready enough to set up the plea of expediency for a
violation of justice; they said,--and we have heard such things
said,--'We must slay this man, or the Romans will come and take
away our place and nation.' Yet even Caiaphas and his Sanhedrim,
in that foulest act of judicial murder, did not venture to set
aside the sacred law which required two witnesses." "Even
Jezebel," said another orator, "did not dare to take Naboth's
vineyard from him till she had suborned two men of Belial to
swear falsely." "If the testimony of one grave elder had been
sufficient," it was asked, "what would have become of the
virtuous Susannah?" This last allusion called forth a cry of
"Apocrypha, Apocrypha," from the ranks of the Low Churchmen.760

Over these arguments, which in truth can scarcely have imposed on
those who condescended to use them, Montague obtained a complete
and easy victory. "An eternal law! Where was this eternal law
before the reign of Edward the Sixth? Where is it now, except in
statutes which relate only to one very small class of offences.
If these texts from the Pentateuch and these precedents from the
practice of the Sanhedrim prove any thing, they prove the whole
criminal jurisprudence of the realm to be a mass of injustice and
impiety. One witness is sufficient to convict a murderer, a
burglar, a highwayman, an incendiary, a ravisher. Nay, there are
cases of high treason in which only one witness is required. One
witness can send to Tyburn a gang of clippers and comers. Are
you, then, prepared to say that the whole law of evidence,
according to which men have during ages been tried in this
country for offences against life and property, is vicious and
ought to be remodelled? If you shrink from saying this, you must
admit that we are now proposing to dispense, not with a divine
ordinance of universal and perpetual obligation, but simply with
an English rule of procedure, which applies to not more than two
or three crimes, which has not been in force a hundred and fifty
years, which derives all its authority from an Act of Parliament,
and which may therefore be by another, Act abrogated or suspended
without offence to God or men."

It was much less easy to answer the chiefs of the opposition when
they set forth the danger of breaking down the partition which
separates the functions of the legislator from those of the
judge. "This man," it was said, "may be a bad Englishman; and yet
his cause may be the cause of all good Englishmen. Only last year
we passed an Act to regulate the procedure of the ordinary courts
in cases of treason. We passed that Act because we thought that,
in those courts, the life of a subject obnoxious to the
government was not then sufficiently secured. Yet the life of a
subject obnoxious to the government was then far more secure than
it will be if this House takes on itself to be the supreme
criminal judicature in political cases." Warm eulogies were
pronounced on the ancient national mode of trial by twelve good
men and true; and indeed the advantages of that mode of trial in
political cases are obvious. The prisoner is allowed to challenge
any number of jurors with cause, and a considerable number
without cause. The twelve, from the moment at which they are
invested with their short magistracy, till the moment when they
lay it down, are kept separate from the rest of the community.
Every precaution is taken to prevent any agent of power from
soliciting or corrupting them. Every one of them must hear every
word of the evidence and every argument used on either side. The
case is then summed up by a judge who knows that, if he is guilty
of partiality, he may be called to account by the great inquest
of the nation. In the trial of Fenwick at the bar of the House of
Commons all these securities were wanting. Some hundreds of
gentlemen, every one of whom had much more than half made up his
mind before the case was opened, performed the functions both of
judge and jury. They were not restrained, as a judge is
restrained, by the sense of responsibility; for who was to punish
a Parliament? They were not selected, as a jury is selected, in a
manner which enables the culprit to exclude his personal and
political enemies. The arbiters of his fate came in and went out
as they chose. They heard a fragment here and there of what was
said against him, and a fragment here and there of what was said
in his favour. During the progress of the bill they were exposed
to every species of influence. One member was threatened by the
electors of his borough with the loss of his seat; another might
obtain a frigate for his brother from Russell; the vote of a
third might be secured by the caresses and Burgundy of Wharton.
In the debates arts were practised and passions excited which are
unknown to well constituted tribunals, but from which no great
popular assembly divided into parties ever was or ever will be
free. The rhetoric of one orator called forth loud cries of "Hear
him." Another was coughed and scraped down. A third spoke against
time in order that his friends who were supping might come in to
divide.761 If the life of the most worthless man could be sported
with thus, was the life of the most virtuous man secure?

The opponents of the bill did not, indeed, venture to say that
there could be no public danger sufficient to justify an Act of
Attainder. They admitted that there might be cases in which the
general rule must bend to an overpowering necessity. But was this
such a case? Even if it were granted, for the sake of argument,
that Strafford and Monmouth were justly attainted, was Fenwick,
like Strafford, a great minister who had long ruled England north
of Trent, and all Ireland, with absolute power, who was high in
the royal favour, and whose capacity, eloquence and resolution
made him an object of dread even in his fall? Or was Fenwick,
like Monmouth, a pretender to the Crown and the idol of the
common people? Were all the finest youths of three counties
crowding to enlist under his banners? What was he but a
subordinate plotter? He had indeed once had good employments; but
he had long lost them. He had once had a good estate; but he had
wasted it. Eminent abilities and weight of character he had never
had. He was, no doubt, connected by marriage with a very noble
family; but that family did not share his political prejudices.
What importance, then, had he, except that importance which his
persecutors were most unwisely giving him by breaking through all
the fences which guard the lives of Englishmen in order to
destroy him? Even if he were set at liberty, what could he do but
haunt Jacobite coffeehouses, squeeze oranges, and drink the
health of King James and the Prince of Wales? If, however, the
government, supported by the Lords and the Commons, by the fleet
and the army, by a militia one hundred and sixty thousand strong,
and by the half million of men who had signed the Association,
did really apprehend danger from this poor ruined baronet, the
benefit of the Habeas Corpus Act might be withheld from him. He
might be kept within four walls as long as there was the least
chance of his doing mischief. It could hardly be contended that
he was an enemy so terrible that the State could be safe only
when he was in the grave.

It was acknowledged that precedents might be found for this bill,
or even for a bill far more objectionable. But it was said that
whoever reviewed our history would be disposed to regard such
precedents rather as warnings than as examples. It had many times
happened that an Act of Attainder, passed in a fit of servility
or animosity, had, when fortune had changed, or when passion had
cooled, been repealed and solemnly stigmatized as unjust. Thus,
in old times, the Act which was passed against Roger Mortimer, in
the paroxysm of a resentment not unprovoked, had been, at a
calmer moment, rescinded on the ground that, however guilty he
might have been, he had not had fair play for his life. Thus,
within the memory of the existing generation, the law which
attainted Strafford had been annulled, without one dissentient
voice. Nor, it was added, ought it to be left unnoticed that,
whether by virtue of the ordinary law of cause and effect, or by
the extraordinary judgment of God, persons who had been eager to
pass bills of pains and penalties, had repeatedly perished by
such bills. No man had ever made a more unscrupulous use of the
legislative power for the destruction of his enemies than Thomas
Cromwell; and it was by an unscrupulous use of the legislative
power that he was himself destroyed. If it were true that the
unhappy gentleman whose fate was now trembling in the balance had
himself formerly borne a part in a proceeding similar to that
which was now instituted against him, was not this a fact which
ought to suggest very serious reflections? Those who tauntingly
reminded Fenwick that he had supported the bill which attainted
Monmouth might perhaps themselves be tauntingly reminded, in some
dark and terrible hour, that they had supported the bill which
had attainted Fenwick. "Let us remember what vicissitudes we have
seen. Let us, from so many signal examples of the inconstancy of
fortune, learn moderation in prosperity. How little we thought,
when we saw this man a favourite courtier at Whitehall, a general
surrounded with military pomp at Hounslow, that we should live to
see him standing at our bar, and awaiting his doom from our lips!
And how far is it from certain that we may not one day, in the
bitterness of our souls, vainly invoke the protection of those
mild laws which we now treat so lightly! God forbid that we
should ever again be subject to tyranny! But God forbid, above
all, that our tyrants should ever be able to plead, in
justification of the worst that they can inflict upon us,
precedents furnished by ourselves!"

These topics, skilfully handled, produced a great effect on many
moderate Whigs. Montague did his best to rally his followers. We
still possess the rude outline of what must have been a most
effective peroration. "Gentlemen warn us"--this, or very nearly
this, seems to have been what he said--"not to furnish King James
with a precedent which, if ever he should be restored, he may use
against ourselves. Do they really believe that, if that evil day
shall ever come, this just and necessary law will be the pattern
which he will imitate? No, Sir, his model will be, not our bill
of attainder, but his own; not our bill, which, on full proof,
and after a most fair hearing, inflicts deserved retribution on a
single guilty head; but his own bill, which, without a defence,
without an investigation, without an accusation, doomed near
three thousand people, whose only crimes were their English blood
and their Protestant faith, the men to the gallows and the women
to the stake. That is the precedent which he has set, and which
he will follow. In order that he never may be able to follow it,
in order that the fear of a righteous punishment may restrain
those enemies of our country who wish to see him ruling in London
as he ruled at Dublin, I give my vote for this bill."

In spite of all the eloquence and influence of the ministry, the
minority grew stronger and stronger as the debates proceeded. The
question that leave should be given to bring in the bill had been
carried by nearly three to one. On the question that the bill
should be committed, the Ayes were a hundred and eighty-six, the
Noes a hundred and twenty-eight. On the question that the bill
should pass, the Ayes were a hundred and eighty-nine, the Noes a
hundred and fifty-six.

On the twenty-sixth of November the bill was carried up to the
Lords. Before it arrived, the Lords had made preparations to
receive it. Every peer who was absent from town had been summoned
up: every peer who disobeyed the summons and was unable to give a
satisfactory explanation of his disobedience was taken into
custody by Black Rod. On the day fixed for the first reading, the
crowd on the benches was unprecedented. The whole number of
temporal Lords, exclusive of minors, Roman Catholics and
nonjurors, was about a hundred and forty. Of these a hundred and
five were in their places. Many thought that the Bishops ought to
have been permitted, if not required, to withdraw; for, by an
ancient canon, those who ministered at the altars of God were
forbidden to take any part in the infliction of capital
punishment. On the trial of a peer impeached of high treason, the
prelates always retire, and leave the culprit to be absolved or
condemned by laymen. And surely, if it be unseemly that a divine
should doom his fellow creatures to death as a judge, it must be
still more unseemly that he should doom them to death as a
legislator. In the latter case, as in the former, he contracts
that stain of blood which the Church regards with horror; and it
will scarcely be denied that there are some grave objections to
the shedding of blood by Act of Attainder which do not apply to
the shedding of blood in the ordinary course of justice. In fact,
when the bill for taking away the life of Strafford was under
consideration, all the spiritual peers withdrew. Now, however,
the example of Cranmer, who had voted for some of the most
infamous acts of attainder that ever passed, was thought more
worthy of imitation; and there was a great muster of lawn
sleeves. It was very properly resolved that, on this occasion,
the privilege of voting by proxy should be suspended, that the
House should be called over at the beginning and at the end of
every sitting, and that every member who did not answer to his
name should be taken into custody.762

Meanwhile the unquiet brain of Monmouth was teeming with strange
designs. He had now reached a time of life at which youth could
no longer be pleaded as an excuse for his faults; but he was more
wayward and eccentric than ever. Both in his intellectual and in
his moral character there was an abundance of those fine
qualities which may be called luxuries, and a lamentable
deficiency of those solid qualities which are of the first
necessity. He had brilliant wit and ready invention without
common sense, and chivalrous generosity and delicacy without
common honesty. He was capable of rising to the part of the Black
Prince; and yet he was capable of sinking to the part of Fuller.
His political life was blemished by some most dishonourable
actions; yet he was not under the influence of those motives to
which most of the dishonourable actions of politicians are to be
ascribed. He valued power little and money less. Of fear he was
utterly insensible. If he sometimes stooped to be a villain,--for
no milder word will come up to the truth,--it was merely to amuse
himself and to astonish other people. In civil as in military
affairs, he loved ambuscades, surprises, night attacks. He now
imagined that he had a glorious opportunity of making a
sensation, of producing a great commotion; and the temptation was
irresistible to a spirit so restless as his.

He knew, or at least strongly suspected, that the stories which
Fenwick had told on hearsay, and which King, Lords and Commons,
Whigs and Tories, had agreed to treat as calumnies, were, in the
main, true. Was it impossible to prove that they were true, to
cross the wise policy of William, to bring disgrace at once on
some of the most eminent men of both parties, to throw the whole
political world into inextricable confusion?

Nothing could be done without the help of the prisoner; and with
the prisoner it was impossible to communicate directly. It was
necessary to employ the intervention of more than one female
agent. The Duchess of Norfolk was a Mordaunt, and Monmouth's
first cousin. Her gallantries were notorious; and her husband
had, some years before, tried to induce his brother nobles to
pass a bill for dissolving his marriage; but the attempt had been
defeated, in consequence partly of the zeal with which Monmouth
had fought the battle of his kinswoman. The lady, though
separated from her lord, lived in a style suitable to her rank,
and associated with many women of fashion, among others, with
Lady Mary Fenwick, and with a relation of Lady Mary, named
Elizabeth Lawson. By the instrumentality of the Duchess, Monmouth
conveyed to the prisoner several papers containing suggestions
framed with much art. Let Sir John,--such was the substance of
these suggestions,--boldly affirm that his confession is true,
that he has brought accusations, on hearsay indeed, but not on
common hearsay, that he has derived his knowledge of the facts
which he has asserted from the highest quarters; and let him
point out a mode in which his veracity may be easily brought to
the test. Let him pray that the Earls of Portland and Romney, who
are well known to enjoy the royal confidence, may be called upon
to declare whether they are not in possession of information
agreeing with what he has related. Let him pray that the King may
be requested to lay before Parliament the evidence which caused
the sudden disgrace of Lord Marlborough, and any letters which
may have been intercepted while passing between Saint Germains
and Lord Godolphin. "Unless," said Monmouth to his female agents,
"Sir John is under a fate, unless he is out of his mind, he will
take my counsel. If he does, his life and honour are safe. If he
does not, he is a dead man." Then this strange intriguer, with
his usual license of speech, reviled William for what was in
truth one of William's best titles to glory. "He is the worst of
men. He has acted basely. He pretends not to believe these
charges against Shrewsbury, Russell, Marlborough, Godolphin. And
yet he knows,"--and Monmouth confirmed the assertion by a
tremendous oath,--"he knows that every word of the charges is
true."

The papers written by Monmouth were delivered by Lady Mary to her
husband. If the advice which they contained had been followed,
there can be little doubt that the object of the adviser would
have been attained. The King would have been bitterly mortified;
there would have been a general panic among public men of every
party; even Marlborough's serene fortitude would have been
severely tried; and Shrewsbury would probably have shot himself.
But that Fenwick would have put himself in a better situation is
by no means clear. Such was his own opinion. He saw that the step
which he was urged to take was hazardous. He knew that he was
urged to take that step, not because it was likely to save
himself, but because it was certain to annoy others; and he was
resolved not to be Monmouth's tool.

On the first of December the bill went through the earliest stage
without a division. Then Fenwick's confession, which had, by the
royal command, been laid on the table, was read; and then
Marlborough stood up. "Nobody can wonder," he said, "that a man
whose head is in danger should try to save himself by accusing
others. I assure Your Lordships that, since the accession of his
present Majesty, I have had no intercourse with Sir John on any
subject whatever; and this I declare on my word of honour."763
Marlborough's assertion may have been true; but it was perfectly
compatible with the truth of all that Fenwick had said. Godolphin
went further. "I certainly did," he said, "continue to the last
in the service of King James and of his Queen. I was esteemed by
them both. But I cannot think that a crime. It is possible that
they and those who are about them may imagine that I am still
attached to their interest. That I cannot help. But it is utterly
false that I have had any such dealings with the Court of Saint
Germains as are described in the paper which Your Lordships have
heard read."764

Fenwick was then brought in, and asked whether he had any further
confession to make. Several peers interrogated him, but to no
purpose. Monmouth, who could not believe that the papers which he
had sent to Newgate had produced no effect, put, in a friendly
and encouraging manner, several questions intended to bring out
answers which would have been by no means agreeable to the
accused Lords. No such answer however was to be extracted from
Fenwick. Monmouth saw that his ingenious machinations had failed.
Enraged and disappointed, he suddenly turned round, and became
more zealous for the bill than any other peer in the House. Every
body noticed the rapid change in his temper and manner; but that
change was at first imputed merely to his well known levity.

On the eighth of December the bill was again taken into
consideration; and on that day Fenwick, accompanied by his
counsel, was in attendance. But, before he was called in, a
previous question was raised. Several distinguished Tories,
particularly Nottingham, Rochester, Normanby and Leeds, said
that, in their opinion, it was idle to inquire whether the
prisoner was guilty or not guilty, unless the House was of
opinion that he was a person so formidable that, if guilty, he
ought to be attainted by Act of Parliament. They did not wish,
they said, to hear any evidence. For, even on the supposition
that the evidence left no doubt of his criminality, they should
still think it better to leave him unpunished than to make a law
for punishing him. The general sense, however, was decidedly for
proceeding.765 The prisoner and his counsel were allowed another
week to prepare themselves; and, at length, on the fifteenth of
December, the struggle commenced in earnest.

The debates were the longest and the hottest, the divisions were
the largest, the protests were the most numerously signed that
had ever been known in the whole history of the House of Peers.
Repeatedly the benches continued to be filled from ten in the
morning till past midnight.766 The health of many lords suffered
severely; for the winter was bitterly cold; but the majority was
not disposed to be indulgent. One evening Devonshire was unwell;
he stole away and went to bed; but Black Rod was soon sent to
bring him back. Leeds, whose constitution was extremely infirm,
complained loudly. "It is very well," he said, "for young
gentlemen to sit down to their suppers and their wine at two
o'clock in the morning; but some of us old men are likely to be
of as much use here as they; and we shall soon be in our graves
if we are forced to keep such hours at such a season.767 So
strongly was party spirit excited that this appeal was
disregarded, and the House continued to sit fourteen or fifteen
hours a day. The chief opponents of the bill were Rochester,
Nottingham, Normanby and Leeds. The chief orators on the other
side were Tankerville, who, in spite of the deep stains which a
life singularly unfortunate had left on his public and private
character, always spoke with an eloquence which riveted the
attention of his hearers; Burnet, who made a great display of
historical learning; Wharton, whose lively and familiar style of
speaking, acquired in the House of Commons, sometimes shocked the
formality of the Lords; and Monmouth, who had always carried the
liberty of debate to the verge of licentiousness, and who now
never opened his lips without inflicting a wound on the feelings
of some adversary. A very few nobles of great weight, Devonshire,
Dorset, Pembroke and Ormond, formed a third party. They were
willing to use the Bill of Attainder as an instrument of torture
for the purpose of wringing a full confession out of the
prisoner. But they were determined not to give a final vote for
sending him to the scaffold.